This page contains Section 409a clauses in business contracts and legal agreements. An example clause is provided at the top of the page, followed by clauses with minor variations. You can view the text differences by selecting the "Show Differences" option.
Section 409a. (a) Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred comp
...ensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.
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Variations of a "Section 409a" Clause from Business Contracts
Section 409a. (a)
Anything in Compliance. The intent of the parties is that payments and benefits under this Agreement
are either exempt from or comply with Section 409A of the Internal Revenue Code ("Section 409A") and, accordingly, to the
contrary notwithstanding, if at maximum extent permitted, the
time of Agreement shall be interpreted to that end. In no event shall the
Executive's separation from service Willis Group or its affiliates be liable for any tax, interest or penalties that may be imposed under... by Section 409A or any damages for failing to comply with Section 409A. (b) Six Month Delay for Specified Employees. If any payment, compensation or other benefit provided to Employee in connection with his employment termination is determined, in whole or in part, to constitute "nonqualified deferred compensation" within the meaning of Section 409A of the Code, the Company determines that the Executive and Employee is a "specified employee" within as defined in Section 409A, no part of such payments shall be paid before the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date day that is the earlier of (A) six months and plus one day after the Executive's separation from service, or (B) the Executive's death. If Employee's date of termination or, if earlier, Employee's death (the "New Payment Date"). The aggregate of any such delayed cash payment is payments that otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid to Employee during the six-month period but for between the application date of this provision, termination and the balance of the installments New Payment Date shall be payable paid to Employee in accordance with their original schedule. (b) a lump sum on such New Payment Date. 11 (c) Payments for Reimbursements and In-Kind Benefits. All in-kind benefits provided reimbursements for costs and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after later than the last day end of the taxable calendar year following the taxable calendar year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits Employee incurs such expense. With regard to be provided or the expenses eligible any provision herein that provides for reimbursement in any other taxable year (except for any lifetime of costs and expenses or other aggregate limitation applicable to medical expenses). Such in-kind benefits, except as permitted by Section 409A, (i) the right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To benefit, and (ii) the extent that amount of expenses eligible for reimbursements or in-kind benefits provided during any payment taxable year shall not affect the expenses eligible for reimbursement or benefit described in-kind benefits to be provided in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's any other taxable year. (d) Termination as a Separation from Service; Separate Payments. A termination of employment, then such payments or benefits employment shall not be payable only upon the Executive's "separation from service." The determination deemed to have occurred for purposes of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A providing for the payment of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement any amounts or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A upon or following a termination of employment until such termination is also a "separation from service" within the Code but do not satisfy meaning of Section 409A. If under this Agreement, an exemption from, amount is paid in two or the conditions of, such Section. more installments, for purposes of Section 409A, each installment shall be treated as a separate payment.
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Section 409a.
(a) Anything 24.1 This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of Internal Revenue Code of 1986, as amended (the "Code") and any regulations and Treasury guidance promulgated thereunder ("Section 409A"). If Employer determines in good faith that any provision of this Agreement would cause Employee to incur an additional tax, penalty, or interest under Section 409A, the Compensation Committee and Employee shall use reasonable efforts to reform such provisio...n, if possible, in a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A or causing the imposition of such additional tax, penalty, or interest under Section 409A. The preceding provisions, however, shall not 17 be construed as a guarantee by Employer of any particular tax effect to Employee under this Agreement. 24.2 "Termination of employment," or words of similar import, as used in this Agreement to the contrary notwithstanding, if at the time means, for purposes of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to payments under this Agreement or otherwise on account that are payments of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code 409A, Employee's "separation from service" as a result of the application defined in Section 409A. 24.3 For purposes of Section 409A(a)(2)(B)(i) 409A, the right to a series of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement payments under this Agreement shall be provided by the Company treated as a right to a series of separate payments. 24.4 With respect to any reimbursement of Employee's expenses, or incurred by the Executive during the time periods set forth in any provision of in-kind benefits to you, as specified under this Agreement. All reimbursements Agreement, such reimbursement of expenses or provision of in-kind benefits shall be paid as soon as administratively practicable, but in no event shall any subject to the following conditions: (1) the expenses eligible for reimbursement be paid after or the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year (except year, except for any lifetime or other aggregate limitation applicable medical reimbursement arrangement providing for the reimbursement of expenses referred to medical expenses). Such in Section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made pursuant to Employer's reimbursement policy but no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To the extent that any 24.5 If a payment or benefit described in obligation under this Agreement that constitutes "non-qualified deferred a payment of "deferred compensation" (as defined under Treasury Regulation Section 409A of the Code, and 1.409A-1(b)(1), after giving effect to the extent that such payment or benefit is payable upon the Executive's termination exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) arises on account of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a Employee's separation from service has occurred while Employee is a "specified employee" (as defined under Section 409A), any payment thereof that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be made in accordance with paid within 15 days after the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A end of the Code. To six-month period beginning on the extent that any provision date of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person separation from service or, if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. earlier, within 15 days following your death.
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Section 409a. (a)
Anything General Compliance. This Agreement is intended to comply with Section 409A or an exemption thereunder and shall be construed and administered in
accordance with Section 409A. Notwithstanding any other provision of this Agreement, payments provided under this Agreement
may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to
the co...ntrary notwithstanding, if at the time of the Executive's an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement shall be treated as a separate payment. Any payments to be made under this Agreement upon a termination of employment shall only be made upon a "separation from service" under Section 409A. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Manager on account of non-compliance with Section 409A. (b) Specified Employees. Notwithstanding any other provision of this Agreement, if any payment or benefit provided to the Manager in connection with his termination of employment is determined to constitute "nonqualified deferred compensation" within the meaning of Section 409A of and the Code, the Company determines that the Executive Manager is determined to be a "specified employee" within the meaning of as defined in Section 409A(a)(2)(B)(i) of the Code, 409A(a)(2)(b)(i), then to the extent any such payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided paid until the first payroll date that is to occur following the earlier six-month anniversary of (A) six months and one day after the Executive's separation from service, or (B) Termination Date (the "Specified Employee Payment Date") or, if earlier, on the Executive's Manager's death. If The aggregate of any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts payments that would otherwise have been paid during before the six-month period but for the application of this provision, and the balance of the installments Specified Employee Payment Date shall be payable paid to the Manager in a lump sum on the Specified Employee Payment Date and thereafter, any remaining payments shall be paid without delay in accordance with their original schedule. (b) All (c) Reimbursements. To the extent required by Section 409A, each reimbursement or in-kind benefits benefit provided and expenses eligible for reimbursement under this Agreement shall be provided by in accordance with the Company following: (i)the amount of expenses eligible for reimbursement, or incurred by in-kind benefits provided, during each calendar year cannot affect the Executive during the time periods set forth expenses eligible for reimbursement, or in-kind benefits to be provided, in this Agreement. All reimbursements any other calendar year; (ii)any reimbursement of an eligible expense shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after to the Manager on or before the last day of the taxable calendar year following the taxable calendar year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such incurred; and (iii)any right to reimbursement reimbursements or in-kind benefits is under this Agreement shall not be subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in (d) Tax Gross-ups. Any tax gross-up payments provided under this Agreement constitutes "non-qualified deferred compensation" under Section 409A shall be paid to the Manager on or before December 31 of the Code, and calendar year immediately following the calendar year in which the Manager remits the related taxes. If two economically equivalent amounts are subject to reduction but are payable at different times, the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits amounts shall be payable only upon the Executive's "separation from service." The determination of whether reduced (but not below zero) on a pro rata basis. (b) All calculations and when a separation from service has occurred determinations under this Section 10 shall be made in accordance with by an independent accounting firm or independent tax counsel appointed by the presumptions set forth in Treasury Regulation Company (the "Tax Counsel") whose determinations shall be conclusive and binding on the Company and the Manager for all purposes. For purposes of making the calculations and determinations required by this Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with 10, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 409A 280G and Section 4999 of the Code. To The Company and the extent that any provision of this Agreement is ambiguous Manager shall furnish the Tax Counsel with such information and documents as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement Tax Counsel may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations request in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) make its determinations under this Section 10. The Company makes no representation or warranty and shall have no liability to bear all costs the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. Tax Counsel may reasonably incur in connection with its services.
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Section 409a.
(a) Anything 24.1 This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of Internal Revenue Code of 1986, as amended (the "Code") and any regulations and Treasury guidance promulgated thereunder ("Section 409A"). If Employer determines in good faith that any provision of this Agreement would cause Employee to incur an additional tax, penalty, or interest under Section 409A, the Compensation Committee and Employee shall use reasonable efforts to reform such provisio...n, if 16 possible, in a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A or causing the imposition of such additional tax, penalty, or interest under Section 409A. The preceding provisions, however, shall not be construed as a guarantee by Employer of any particular tax effect to Employee under this Agreement. 24.2 "Termination of employment," or words of similar import, as used in this Agreement to the contrary notwithstanding, if at the time means, for purposes of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to payments under this Agreement or otherwise on account that are payments of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code 409A, Employee's "separation from service" as a result of the application defined in Section 409A. 24.3 For purposes of Section 409A(a)(2)(B)(i) 409A, the right to a series of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement payments under this Agreement shall be provided by the Company treated as a right to a series of separate payments. 24.4 With respect to any reimbursement of Employee's expenses, or incurred by the Executive during the time periods set forth in any provision of in-kind benefits to you, as specified under this Agreement. All reimbursements Agreement, such reimbursement of expenses or provision of in-kind benefits shall be paid as soon as administratively practicable, but in no event shall any subject to the following conditions: (1) the expenses eligible for reimbursement be paid after or the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year (except year, except for any lifetime or other aggregate limitation applicable medical reimbursement arrangement providing for the reimbursement of expenses referred to medical expenses). Such in Section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made pursuant to Employer's reimbursement policy but no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To the extent that any 24.5 If a payment or benefit described in obligation under this Agreement that constitutes "non-qualified deferred a payment of "deferred compensation" (as defined under Treasury Regulation Section 409A of the Code, and 1.409A-1(b)(1), after giving effect to the extent that such payment or benefit is payable upon the Executive's termination exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) arises on account of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a Employee's separation from service has occurred while Employee is a "specified employee" (as defined under Section 409A), any payment thereof that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be made in accordance with paid within 15 days after the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A end of the Code. To six-month period beginning on the extent that any provision date of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person separation from service or, if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. earlier, within 15 days following your death.
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Section 409a. (a)
Anything in this Agreement Notwithstanding anything to the contrary
notwithstanding, in this Agreement, if at the time of
the Executive's separation from service within the meaning Employee's termination of
employment, Employee is a "specified employee," as defined below, any and all amounts payable under Section 10 on account of such termination of employment that constitute "nonqualified deferred compensation" under Section 409A of
Code and the
Code, the Company determines that the Executi...ve is a "specified employee" within the meaning regulations and guidance of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under general applicability issued thereunder ("Section 409A") and would (but for this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not provision) be payable and such benefit shall not be provided until within six (6) months following the date that is of termination, shall instead be paid on the earlier next business day following the expiration of (A) such six months and one day after (6) month period or, if earlier, upon Employee's death, in each case, with interest from the Executive's separation from service, or (B) the Executive's death. If any such delayed cash date on which payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been made, calculated at the applicable federal rate provided under Section 7872(f)(2)(A) of the Code. If Employee receives compensation under Section 10 that can in part be treated as paid during under a "separation pay plan" described in Treasury Regulation Section 1.409A-1(b)(9) then, to the six-month period but for extent permitted under Section 409A, the application compensation shall be treated as first made from the separation pay plan. (b) For purposes of Section 10 of this provision, Agreement, all references to "termination of employment" and correlative phrases shall be construed to require a "separation from service" (as defined in Treasury regulation Section 1.409A-1(h) after giving effect to the presumptions contained therein), and the balance of the installments shall term "specified employee" means an individual determined by Employer to be payable a specified employee under Treasury regulation Section 1.409A-1(i) in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement the policies of Employer. (c) Each payment made under this Agreement shall be provided by treated as a separate payment and the Company or incurred by the Executive during the time periods set forth in right to a series of installment payments under this Agreement. All reimbursements Agreement shall be treated as a right to a series of separate payments. (d) Any amount that Employee is entitled to be reimbursed or to have paid as soon as administratively practicable, but on his behalf under this Agreement that would constitute nonqualified deferred compensation subject to Section 409A shall be subject to the following additional rules: (i) no reimbursement of any such expense shall affect the Employee's right to reimbursement of any such expense in no event shall any other taxable year; (ii) reimbursement be paid after the last day of the taxable expense shall be made, if at all, promptly, but not later than the end of the calendar year following the taxable calendar year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect incurred; and (iii) the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another any other benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, (e) The parties acknowledge and agree that, to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits applicable, this Agreement shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered interpreted in accordance with Section 409A of and the Code. To Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued in the extent that any provision future. The parties shall cooperate in good faith and take all steps reasonably necessary and practicable consistent with the terms of this Agreement is ambiguous as to its compliance comply with the requirements of Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to avoid income inclusion under Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. imposition of taxes thereunder. -6- 15. Reserved.
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Section 409a. (a)
Anything in this This Agreement
to the contrary notwithstanding, if at the time of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred... compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and to the extent that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost are intended to either party. (e) The Company makes no representation be exempt from, or warranty comply with, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and shall be construed consistently with that intent. Notwithstanding the foregoing, in no event shall the Company have no any liability relating to the Executive failure or alleged failure of any other person if any provisions of payment or benefit under this Agreement are determined to be exempt from, or comply with, the requirements of such Section 409A. Each payment made under this Agreement shall be treated as a separate payment and the right to a series of installment payments under this Agreement shall be treated as a right to a series of separate payments. (b) Any reimbursement for expenses payable to you hereunder that would constitute nonqualified deferred compensation subject to Section 409A of the Code shall be subject to the following additional rules: (i) no reimbursement of any such expense shall affect your right to reimbursement of any such expense in any other taxable year; (ii) reimbursement of the expense shall be made, if at all, promptly, but not later than the end of the calendar year following the calendar year in which the expense was incurred; and (iii) the right to reimbursement shall not be subject to liquidation or exchange for any other benefit. (c) If you are a "specified employee" (as defined below) at the time of your "separation from service" (as defined below), any payments or benefits that are payable under this Agreement or otherwise on account of your separation from service that would (but for this provision) be payable within six (6) months following the date of such separation from service, shall instead be paid on the next business day following the expiration of such six (6)-month period or, if earlier, upon your death; except (i) to the extent of amounts that do not satisfy constitute a deferral of compensation within the meaning of Section 1.409A-1(b) of the Treasury Regulations (including without limitation by reason of the safe harbor set forth in Section 1.409A-l(b)(9)(iii), as determined by the Company in its reasonable good faith discretion); (ii) benefits which qualify as excepted welfare benefits pursuant to Section 1.409A-l(a)(5) of the Treasury Regulations; or (iii) other amounts or benefits that are not subject to the requirements of Section 409A of the Code. (d) For purposes of this Agreement, the term "separation from service" shall have the meaning set forth in Section 1.409A-l(h) of the Treasury Regulations (after giving effect to the presumptions contained therein), and the term "specified employee" means an exemption from, or individual determined by the conditions of, such Section. Company to be a specified employee under Section 1.409A-l(i) of the Treasury Regulations.
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Section 409a.
(a) Anything 24.1 This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of Internal Revenue Code of 1986, as amended (the "Code") and any regulations and Treasury guidance promulgated thereunder ("Section 409A"). If Employer determines in good faith that any provision of this Agreement would cause Employee to incur an additional tax, penalty, or interest under Section 409A, the Compensation Committee and Employee shall use reasonable efforts to reform such provisio...n, if possible, in a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A or causing the imposition of such additional tax, penalty, or interest under Section 409A. The preceding provisions, however, shall not be construed as a guarantee by Employer of any particular tax effect to Employee under this Agreement. 24.2 "Termination of employment," or words of similar import, as used in this Agreement to the contrary notwithstanding, if at the time means, for purposes of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to payments under this Agreement or otherwise on account that are payments of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code 409A, Employee's "separation from service" as a result of the application defined in Section 409A. 24.3 For purposes of Section 409A(a)(2)(B)(i) 409A, the right to a series of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement payments under this Agreement shall be provided by the Company treated as a right to a series of separate payments. 24.4 With respect to any reimbursement of Employee's expenses, or incurred by the Executive during the time periods set forth in any provision of in-kind benefits to you, as specified under this Agreement. All reimbursements Agreement, such reimbursement of expenses or provision of in-kind benefits shall be paid as soon as administratively practicable, but in no event shall any subject to the following conditions: (1) the expenses eligible for reimbursement be paid after or the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year (except year, except for any lifetime or other aggregate limitation applicable medical reimbursement arrangement providing for the reimbursement of expenses referred to medical expenses). Such in Section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made pursuant to Employer's reimbursement policy but no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To the extent that any 24.5 If a payment or benefit described in obligation under this Agreement that constitutes "non-qualified deferred a payment of "deferred compensation" (as defined under Treasury Regulation Section 409A of the Code, and 1.409A-1(b)(1), after giving effect to the extent that such payment or benefit is payable upon the Executive's termination exemptions in Treasury 18 Regulation Sections 1.409A-1(b)(3) through (b)(12)) arises on account of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a Employee's separation from service has occurred while Employee is a "specified employee" (as defined under Section 409A), any payment thereof that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be made in accordance with paid within 15 days after the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A end of the Code. To six-month period beginning on the extent that any provision date of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person separation from service or, if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. earlier, within 15 days following your death.
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Section 409a. (a)
Anything General. The parties to this Agreement intend that the Agreement complies with Section 409A, where applicable, and this Agreement shall be interpreted in a manner consistent with that intention. Except as otherwise permitted under Section 409A, no payment hereunder shall be accelerated or deferred unless such acceleration or deferral would not result in additional tax or interest pursuant to Section 409A. 11 (b) Separation from Service. Notwithstanding anything in this Agreement to
...the contrary notwithstanding, if at contrary, any compensation or benefits payable under this Agreement that is considered nonqualified deferred compensation under Section 409A and is designated under this Agreement as payable upon Employee's termination of employment shall be payable only upon Employee's "separation from service" with the time of the Executive's separation from service Company within the meaning of Section 409A of (a "Separation from Service"). (c) Specified Employee. Notwithstanding anything in this Agreement to the Code, contrary, if Employee is deemed by the Company determines that at the Executive is time of Employee's Separation from Service to be a "specified employee" within the meaning for purposes of Section 409A(a)(2)(B)(i) of the Code, then 409A, to the extent delayed commencement of any payment or benefit that portion of the Executive becomes benefits to which Employee is entitled to under this Agreement or otherwise on account is required in order to avoid a prohibited distribution under Section 409A, such portion of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit Employee's benefits shall not be provided until the date that is to Employee prior to the earlier of (A) the expiration of the six months and one day after (6)-month period measured from the Executive's separation date of Employee's Separation from service, Service with the Company or (B) the Executive's date of Employee's death. If any such delayed cash payment is otherwise payable on an installment basis, Upon the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during business day following the six-month period but for the application of this provision, and the balance expiration of the installments applicable Section 409A period, all payments deferred pursuant to the preceding sentence shall be payable paid in accordance with their original schedule. (b) All in-kind benefits provided a lump sum to Employee (or Employee's estate or beneficiaries), and expenses eligible for reimbursement any remaining payments due to Employee under this Agreement shall be paid as otherwise provided by herein. (d) Expense Reimbursements. To the Company or incurred by the Executive during the time periods set forth in extent that any reimbursements under this Agreement. All Agreement are subject to Section 409A, any such reimbursements payable to Employee shall be paid as soon as administratively practicable, but in to Employee no event shall any reimbursement be paid after the last day later than December 31st of the taxable year following the taxable year in which the expense was incurred. The incurred; provided, that Employee submits Employee's reimbursement request promptly following the date the expense is incurred, the amount of in-kind benefits provided or reimbursable expenses incurred reimbursed in one taxable year shall not affect the in-kind benefits to be provided or the expenses amount eligible for reimbursement in any subsequent year, other taxable year (except for any lifetime or other aggregate limitation applicable than medical expenses referred to medical expenses). Such in Section 105(b) of the Code, and Employee's right to reimbursement or in-kind benefits is under this Agreement will not be subject to liquidation or exchange for another benefit. (c) (e) Installments. Employee's right to receive any installment payments under this Agreement, including without limitation any continuation salary payments that are payable on Company payroll dates, shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment as permitted under Section 409A. (f) Release. Notwithstanding anything to the contrary in this Agreement, to the extent that any payments due under this Agreement as a result of Employee's termination of employment are subject to Employee's execution and delivery of a Release, in any case where Employee's date of termination and Release Expiration Date (as defined below) fall in two separate taxable years, any payments required to be made to Employee that are conditioned on the Release and are treated as nonqualified deferred compensation for purposes of Section 409A shall be made in the later taxable year. For purposes hereof, "Release Expiration Date" shall mean the date that is twenty-one (21) days following the date upon which the Company timely delivers the Release to Employee, or, in the event that Employee's termination of employment is "in connection with an exit incentive or other employment termination program" (as such phrase is defined in the Age Discrimination in Employment Act of 1967), the date that is forty-five (45) days following such delivery date. To the extent that any payment or benefit described in payments of nonqualified deferred compensation (within the meaning of Section 409A) due under this Agreement constitutes "non-qualified deferred compensation" under Section 409A as a result of the Code, and to the extent that such payment or benefit is payable upon the Executive's Employee's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment employment are delayed pursuant to this Agreement or Section 9(m)(v), such amounts shall be paid in a lump sum on the Restrictive Covenants Agreement is intended first payroll period to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of occur in the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. subsequent taxable year.
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Section 409a.
(a) Anything 24.1 This Agreement is intended to comply with, or otherwise be exempt from, Section 409A of Internal Revenue Code of 1986, as amended (the "Code") and any regulations and Treasury guidance promulgated thereunder ("Section 409A"). If Employer determines in good faith that any provision of this Agreement would cause Employee to incur an additional tax, penalty, or interest under Section 409A, the Compensation Committee and Employee shall use reasonable efforts to reform such provisio...n, if possible, in a mutually agreeable fashion to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A or causing the imposition of such additional tax, penalty, or interest under Section 409A. The preceding provisions, however, shall not be construed as a guarantee by Employer of any particular tax effect to Employee under this Agreement. 24.2 "Termination of employment," or words of similar import, as used in this Agreement to the contrary notwithstanding, if at the time means, for purposes of the Executive's separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a "specified employee" within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to payments under this Agreement or otherwise on account that are payments of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code 409A, Employee's "separation from service" as a result of the application defined in Section 409A. 24.3 For purposes of Section 409A(a)(2)(B)(i) 409A, the right to a series of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement payments under this Agreement shall be provided by the Company treated as a right to a series of separate payments. 24.4 With respect to any reimbursement of Employee's expenses, or incurred by the Executive during the time periods set forth in any provision of in-kind benefits to you, as specified under this Agreement. All reimbursements Agreement, such reimbursement of expenses or provision of in-kind benefits shall be paid as soon as administratively practicable, but in no event shall any subject to the following conditions: (1) the expenses eligible for reimbursement be paid after or the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year (except year, except for any lifetime or other aggregate limitation applicable medical reimbursement arrangement providing for the reimbursement of expenses referred to medical expenses). Such in Section 105(b) of the Code; (2) the reimbursement of an eligible expense shall be made pursuant to Employer's reimbursement policy but no later than the end of the year after the year in which such expense was incurred; and (3) the right to reimbursement or 17 in-kind benefits is shall not be subject to liquidation or exchange for another benefit. (c) To the extent that any 24.5 If a payment or benefit described in obligation under this Agreement that constitutes "non-qualified deferred a payment of "deferred compensation" (as defined under Treasury Regulation Section 409A of the Code, and 1.409A-1(b)(1), after giving effect to the extent that such payment or benefit is payable upon the Executive's termination exemptions in Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) arises on account of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a Employee's separation from service has occurred while Employee is a "specified employee" (as defined under Section 409A), any payment thereof that is scheduled to be paid within six (6) months after such separation from service shall accrue without interest and shall be made in accordance with paid within 15 days after the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A end of the Code. To six-month period beginning on the extent that any provision date of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement or the Restrictive Covenants Agreement is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person separation from service or, if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section. earlier, within 15 days following your death.
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Section 409a.
(a) Anything in This Agreement is intended to comply with Section 409A of the Code, or an exemption, and the provisions of this Section shall apply notwithstanding any provisions of this Agreement to the
contrary notwithstanding, if at the time contrary. Severance benefits under this Agreement are intended to be exempt from Section 409A of the
Executive's separation Code under the "short-term deferral" exception, to the maximum extent applicable, and then under the "separation pay" exception, to... the maximum extent applicable. All payments to be made upon a termination of employment under this Agreement may only be made upon a "separation from service within service" under Section 409A of the meaning Code. The Parties agree that it is reasonably anticipated that any services Employee provides after the Termination Date shall not exceed 20% of the average level of services Employee rendered to the Company as an employee with the Company for the 36-month period ending on the Termination Date and that Employee will incur a "separation from service" as of the Termination Date. For purposes of Section 409A of the Code, the Company determines that the Executive is right to a "specified employee" within the meaning series of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement or otherwise on account of the Executive's separation from service would be considered deferred compensation otherwise subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive's separation from service, or (B) the Executive's death. If any such delayed cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts that would otherwise have been paid during the six-month period but for the application of this provision, and the balance of the installments shall be payable in accordance with their original schedule. (b) All in-kind benefits provided and expenses eligible for reimbursement payments under this Agreement shall be provided by the Company or incurred by the Executive during the time periods set forth in this Agreement. All reimbursements treated as a right to a series of separate payments and each payment shall be paid treated as soon as administratively practicable, but in no event shall a separate payment. With respect to any reimbursement be paid after the last day of the taxable year following the taxable year in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits is not payments that are subject to liquidation or exchange for another benefit. (c) To the extent that any payment or benefit described in this Agreement constitutes "non-qualified deferred compensation" under Section 409A of the Code, and in no event shall Employee, directly or indirectly, designate the calendar year of a payment. With respect to the extent any payments that such payment or benefit is payable upon the Executive's termination of employment, then such payments or benefits shall be payable only upon the Executive's "separation from service." The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h). (d) The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as are subject to its compliance with Section 409A of the Code, in no event shall the provision shall be read in such a manner so that all payments hereunder comply with Section 409A timing of Employee's execution of the Code. Each Second Release, directly or indirectly, result in Employee designating the calendar year of payment pursuant to this Agreement or the Restrictive Covenants Agreement of any amount set forth in Section 3(b) above, and if a payment of any amount set forth in Section 3(b) above is intended to constitute a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party. (e) The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, and could be made in more than one taxable year, based on timing of the execution of this Agreement, payment shall be made in the later taxable year. Any reimbursements and in-kind benefits provided under this Agreement shall be made or provided in accordance with the conditions of, such Section. requirements of Section 409A of the Code.
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